It has been dubbed the 'sweetheart contract'.1 For 50 years, the consultants' contract has remained little changed, allowing hospital doctors unique freedom to set their own hours and sometimes fit in large chunks of private practice during the normal working week.
But now the romance may be over. The government has made clear it wants a radical overhaul of the contract. Before moving on in December, former health minister Alan Milburn called for changes which would encourage maximum contribution to the NHS, reward achievement and root out abuse. Leaked reports have suggested a deal offering doctors£20,000 or£30,000 to forgo private work might be on the cards.
Nobody denies the need for reform. Academics, politicians and managers have long bemoaned the vagueness and inflexibility of the contract. Even the doctors are chafing for change. While some want even more freedom to work privately, a growing number are keen to commit themselves wholly to the NHS.
The British Medical Association, which triggered the negotiations by asking to 'tidy up' the contract, wants to end the 10 per cent private practice rule for full-timers, and resists all efforts to curb private work.
One reason the consultants' contract remains virtually unchanged since 1948 is that unravelling it is likely to prove complex, confrontational and extremely expensive.
The current contract dates from 1979, though the basics have changed little since the creation of the NHS. There are three main options:
A whole-time contract allows the consultant to earn up to 10 per cent of their NHS salary in private practice. The current basic salary is up to£57,800, excluding merit awards.
A maximum part-time contract lets the doctor earn unlimited private income in return for giving up one 11th of a full-time salary. Both these contracts commit consultants to devote 'substantially the whole of their professional time' to NHS duties.
Arguments rage over how much time this allows consultants to devote to private practice within the core working week. Former NHS chief executive Sir Duncan Nichol suggested a limit of one session per week, but this was dismissed by both government and the BMA as his 'personal' view. A few trusts have attempted to pin down consultants to two sessions. Doctors on both these contracts are expected to work at least 10 'notional half days' (NHD) - given as three-and-a-half hours - doing NHS work. Between five and seven NHDs are 'fixed commitments', such as operating lists or outpatient clinics, with set times. The remainder are 'flexible' commitments including teaching, medical audit and on-call rotas, which may be carried out at varying times and out-of-hours. This enables doctors to carry out private practice during the usual working week, while making up that time at evenings and weekends.
Doctors on a part-time contract can work between one and nine NHDs. The BMA estimates that about half of consultants are on whole-time contracts, one third on maximum part-time and one-sixth on part-time.
There are two basic obstacles to change. British consultants earn less than doctors in other Western countries, so their private income is viewed as compensation. At the same time, they work long hours, so pinning down their activities might jeopardise that goodwill, leading to increased waiting lists.
The BMA has leaped with glee on two leaked studies commissioned by the doctors' pay review body which confirm that consultants work long hours and more intensely than previously. The research shows that full-timers work an average 53 hours a week and maximum part-timers an average 51 hours - in excess of their contracted hours and the EU's 48-hour limit, although less than the average 56 hours a week worked by top NHS managers, according to an Institute of Health Services Managers study in 1995.
Professor Alan Maynard of York University says paying doctors more to forgo private work would give unnecessarily big pay hikes to doctors who do little private practice, while being insufficient to attract those who can earn up to double their salary working privately.
Instead, the contract should make private practice more transparent and link pay to performance and productivity, he maintains. For example, while some ophthalmologists perform three cataract operations a session, others fit in nine. 'It should be like premier football,' he explains. 'They should make pay contingent on scoring a goal and not getting banned or getting a yellow card.'
Professor David Hunter of Leeds University's Nuffield Institute warns that attempting to curb private practice would open a 'can of worms'. Ministers are more likely to try to pin down doctors' commitments so that private practice is better defined. He says: 'If people are performing their public sector commitments, what they do in their own time is fine as long as it doesn't affect the NHS.'
The NHS Confederation is keen that the talks do not provoke the doctors. The aim should be jointly to design a mutually better system, says Andrew Foster, who chairs the human resources committee and sits on the government's negotiating team. That should include more flexibility in the contract, to let consultants alter work patterns in later life and stem the growing trend in early retirement. Being on-call one night in four is acceptable for someone in their 30s but not when they reach 50 or 60, he argues.
While he believes some trusts are keen to pay consultants extra for a full-time NHS commitment, if doctors are already working more than 50 hours a week 'we can hardly ask them to work harder'. He adds: 'I think if these are to be successful, they must be seen as a winning set of negotiations, not one side trying to put one over on the doctors.'
The Association of Healthcare Human Resource Management wants to see clearer definition of NHS commitment in the contract. The current system of fixed and non-fixed commitments suits nobody, says ex-president Colin Pearson, who is human resources director at Milton Keynes General Hospital trust. However, curbing private practice would be a 'very tricky area', he warns.
But Rowland Hopkinson, who chairs the Association of Trust Medical Directors, believes any contract talks cannot avoid broaching private practice. The current contract is too open-ended on both sides, he argues. It fails to recognise doctors' long hours while stopping the NHS from making better use of day-time resources. There should be a clearer definition of doctors' NHS commitments and private practice, he adds. Any efforts to curtail private practice will be fiercely fought by the BMA. A spokesperson argues that since consultants already work overtime for the NHS, what they do in their own time is, ultimately, their own business.
But there is some support for change among medics. The climate is moving in the direction of the 'work-sensitive' contract which has been pushed for many years by the 2,500-member Hospital Consultants and Specialists Association. Under its blueprint, which has been put to ministers, doctors could opt for anything from one to 14 NHDs and be paid accordingly.
This would reward doctors who work long hours while giving flexibility to those who want to work less, to fit in childcare, private practice or just ease down as they get older, explains chief executive Stephen Charkham. He believes most doctors would support such a contract. 'I have a feeling there is a very strong move to have their hard work recognised,' he says. That would cost the NHS more, he admits. 'But you cannot run a service ad infinitum on not paying your staff.'